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Fire on property

When is a landowner responsible for a fire that spreads beyond his property?

Property damages claims:

Here, in the Western Cape; it is now “Fire Season”; and the local authorities have their hands full with seasonal wildfires.

Some of them have been devastating and Bettys Bay lost more than 40 dwellings in a wildfire a few weeks ago; which was fanned by gale force winds. That fire was allegedly started as a result of a man deliberately or negligently firing a flare onto the mountainside above the holiday town. He has now appeared in the Caledon Magistrates Court and faces a string of charges.

With this, as background, we received an interesting query in two weeks ago; which can be summarised as follows:

When is a landowner responsible for a fire that spreads beyond his property?

The gist of the lengthy email inquiry was as follows:

 “I am a local landowner and I own a small holding of a few hectares. Recently, with the strong winds in the area, a veld fire started on my property. I’m still not sure what happened, but the fire spread quickly fanned by a strong North Westerly wind and despite my attempts to contain it, it spread to my neighbour’ s property and caused extensive damage to some of his farm structures and sheds, before we could together get it under control. Needless to say, my neighbour is very upset about the damage and I think that he is contemplating holding me responsible for the damage caused to his property because the fire started on my smallholding. My question then is: Can he hold me liable for the damage caused to his property?”

I am sure that this question may be of concern to many landowners.

The primary piece of legislation relating to the responsibilities of landowners in respect of veld fires is the National Veld & Forest Fire Act  No” 101 of 1998 (the “Act”).

Section 34 of the Act is particularly relevant when it comes to the liability of a landowner.

Very importantly, It establishes a presumption of negligence against the landowner by providing that and I quote directly from the “Act “and then comment: 

“34(1)    If a person who brings civil proceedings proves that he or she suffered loss from a veld fire which:
(a) the defendant caused; or
(b) started on or spread on or spread from land owned by the defendant;

the defendant is presumed to have been negligent in relation to the veld fire until the contrary is proven

unless the defendant is a member of a fire protection association in the area where the fire occurred”.

The word “defendant” above would mean a landowner; as in the case of the party who wrote the query to us.

You can, therefore, see why landowners need to know and understand where they stand in this context.

It must, however, be noted that despite the presumption of negligence, the plaintiff (ie the adjoining landowner in our query) must still prove that any act taken or omission by the defendant was wrongful ie willful or negligent. 

Therefore; in analysing the responsibility of a landowner, our courts found, in the case of MTO Forestry (Pty) Ltd v Swart NO that a reasonable landowner was not obliged to ensure that, in all circumstances, fire on his property would not spread beyond its boundaries.

A landowner simply has an obligation to ensure that he has taken reasonable steps to prevent a veld fire from occurring and negligence will not be attached to the landowner if, notwithstanding reasonable steps, a fire still spreads to a neighbouring, adjacent or any other adjoining land/property. 

In order to establish what those reasonable steps would or could be, the “Act” provides guidance in respect of, for example, establishing firebreaks, having fire-fighting equipment on hand, having trained personnel who are capable of fighting fires, alerting landowners nearby of a veld fire occurring, etc. If the landowner does not have such reasonable measures in place and is seen to not have exercised urgency to minimise the risk and the crisis unfolding, then he may well be held negligent through operation of the presumption contained in section 34 of the “Act”.

The “Act” provides, as we have seen, for the presumption of negligence not to be present or applicable where a landowner is part of a Fire Protection Association in the region of his land. Through membership of such an association, the “Act” intends and encourages landowners to be more prepared and have measures in place to prevent and combat veld fires. As a result, the presumption of negligence is then not applied, although it does not obviate the fact that negligence on the part of such a member landowner can still be proved; but then without the benefit of a presumption of negligence.

In the above case of our enquirer, unless he was a member of a Fire Protection Association, there will be presumed negligence on his part in relation to the veld fire. This presumption can, however, be negated by the showing that he had in place and/or did take all reasonable measures as required by the Act.

All landowners should, therefore, ensure that they record all the measures which they have taken to prevent a veld fire both from starting on and from spreading from their property.This is particularly true for farm and small holding property owners.

They would not want to be sued for damages by a neighbour or neighbours who feel that they have not taken appropriate precautions to stop and contain veld fires from spreading from their properties.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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